BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

During Mike Hosking Breakfast on Newstalk ZB, Mike Yardley (standing in for Mr Hosking) briefly mentioned the flouting of COVID-19 rules by two named Sky News UK journalists and stated: ‘veteran journalist Adam Boulton is also involved in this’. The Authority did not uphold a complaint the broadcast breached the accuracy standard by misleading listeners to believe Mr Boulton was one of those who flouted the rules. The Authority acknowledged that, without further clarification, the broadcast may have created that impression. However in all the circumstances the potential harm in a New Zealand broadcasting context was not at a level justifying regulatory intervention.

Not Upheld: Accuracy

The broadcast

[1]  During Mike Hosking Breakfast on 10 December 2020, Mike Yardley (standing in for Mike Hosking) briefly mentioned the flouting of COVID-19 rules by some Sky News UK journalists:

Couple of interesting titbits overnight on the COVID front. If you are a night owl, you might sometimes be watching Sky News UK, right? So you’ll probably know these names. And these are, these are very prominent presenters who are in major shtuck at the moment with their employer – Kay Burley, and also their star reporter, Beth Rigby. They are off air. Apparently, there’s been quite a lot of tier-two flouting at a 60th birthday bash [laughs]. Veteran editor Adam Boulton is also involved in this. So Sky News have been detaining a number of their staff from being able to work because of the flouting.

[2]  The conversation then quickly moved on to some remarks about why people were repeatedly being shown taking their shirts off in images of COVID-19 vaccinations being administered, before signalling upcoming topics of Greece and ‘the latest in Italy… as to lockdowns and restrictions and so forth’.

The complaint

[3]  Jason Collie complained the broadcast breached the accuracy standard:

[Mr Yardley] said Adam Boulton was involved. He was not. He wasn’t at the party. I think [Mr Yardley] got confused because it was reported Mr Boulton had retweeted criticism of Ms Burley – so completely different to inferring he was involved in the party. I've tried to contact Mr Yardley to get him to correct this… He has not responded. …he should take public responsibility for an incorrect claim about Mr Boulton.

[4]  In later submissions Mr Collie added:

• Mr Yardley’s statement inferred Adam Boulton was one of the staff involved in flouting COVID-19 rules and stood down from work.
• ‘Mr Yardley and Newstalk ZB have a responsibility and accountability over what is actually broadcast, not what the presenter may or may not have believed in their mind but did not then reasonably explain.’
• ‘The issue is not that it was wrong to say anything on the subject. It is that one part of it was misleading. Freedom of expression when reporting facts does not absolve you of the responsibility to report them accurately.’

The broadcaster’s response

[5]  NZME did not uphold Mr Collie’s complaint on the basis:

• The standard does not usually apply to talkback radio unless the host makes an ‘unqualified statement of fact’. Mr Yardley’s statement was a comment rather than a statement of fact and the standard therefore did not apply.
• Mr Boulton was sufficiently differentiated from the other two presenters clearly identified as being those taken off air.
• While the host did not clarify for listeners what he meant by saying Mr Boulton was ‘involved in this’, it was ‘a reference to the fact that Mr Boulton had retweeted several critical posts about the story to voice his concern that this flouting of the rules by his fellow presenters could have a negative impact on the credibility of Sky’s journalism and on Sky’s ability to hold public figures to account over their conduct during the Covid-19 pandemic’.
• Its listeners were likely to be aware of, or get clarification on, the nature of Mr Boulton’s involvement from other media coverage.
• The comments of the host did not risk significantly misleading or misinforming the audience on a matter of high public importance or create a risk of actual or potential harm.

The standard

[6]  The accuracy standard¹ states broadcasters should make reasonable efforts to ensure news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.

Our analysis

[7]  We have listened to the broadcast and read the correspondence listed in the Appendix.

Jurisdiction

[8]  We first noted the complaint was made by an individual who is based in the UK, having listened to the broadcast content online on demand, via a podcast. We do not know from the complaint when the podcast was accessed or how long after the original broadcast – which in some circumstances may impact how the content was received, other relevant context including what has happened – including in other media coverage – in the intervening period, and the level of harm caused (for example depending on who and where the audience is).

[9]  Nevertheless we agreed the Authority has jurisdiction to consider this particular complaint, on the basis the Codebook states programmes viewed or listened to on demand are within the Authority’s jurisdiction if the complainant is able to identify the time and date of the original broadcast.² The complainant identified the broadcast details in his original complaint to NZME (and although the date was not correct, the details provided were sufficient to enable the broadcaster to locate and identify the relevant content, and respond to the complaint).

Freedom of expression

[10]  Turning to the substance of the complaint, our task is to weigh the important right to freedom of expression against the potential harm caused by the broadcast, in this case referring to the objectives of the accuracy standard. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.³

Accuracy

[11]  Audiences may be misinformed in two ways: by an inaccurate statement of fact within the programme or being misled by the programme.⁴ To ‘mislead’ in the context of the standard means ‘to give another a wrong idea or impression of the facts’.⁵ Programmes may be misleading by omission.⁶

[12]  The broadcaster addressed the complaint under the first branch, arguing the statement was comment and part of a talkback programme, therefore the standard did not apply. We have previously found Mike Hosking Breakfast amounts to a news and current affairs programme to which the accuracy standard applies, as ‘While there is an element of talkback in Mike Hosking Breakfast, to which the standard will not usually apply, the programme [focuses] on the discussion of the latest news and events through Mr Hosking’s perspective’ (or in this case Mr Yardley’s, standing in).⁷

[13]  In any case we consider the complaint is more appropriately addressed under the second branch of the standard, requiring programmes do not ‘mislead’. The complainant’s concern is, in essence, that Mr Yardley’s comment created a misleading impression Mr Boulton was one of the staff members involved in flouting COVID-19 rules.

[14]  We acknowledge the statement Mr Boulton ‘is also involved in this’ came immediately after his comments about the other two reporters’ flouting of rules at a party, and immediately before saying ‘Sky News have been detaining a number of their staff from being able to work because of the flouting’. In this sense listeners may have wrongly inferred from the comments Mr Boulton was one of those staff.

[15]  However, in all the circumstances we do not consider the level of potential harm, in a New Zealand broadcasting context, justifies regulatory intervention or finding a breach of the accuracy standard. We have taken into account:

• This was a live broadcast where the subject was brought up in passing, seemingly as a ‘filler’ mentioning ‘a couple of interesting titbits overnight’. It was fleeting – only 45 seconds – in the context of a much longer programme covering a wide range of topics.
• The complainant is based in the UK and listened to the broadcast via a podcast in the UK. He will be familiar with the personalities in question. We consider it unlikely New Zealand listeners – who may or may not be familiar with Mr Boulton – would attach the same level of importance to the segment or form any meaningful view about Mr Boulton based on this very brief comment.
• As submitted by NZME, Mr Yardley identified the two presenters who had been taken off air.
• The broadcaster has explained what Mr Yardley meant by saying Mr Boulton was ‘involved’ (essentially publicly condemning the actions of the other staff members on social media), and it may have been preferable for him to also briefly explain this for listeners’ benefit.
• Nevertheless, although he did not voice that for the audience, readily available coverage would have quickly clarified the nature of Mr Boulton’s ‘involvement’ for any interested audience member.⁸
• Overall the risk of actual or potential harm, in terms of misleading the audience on a matter of relatively low importance or concern to the New Zealand public (although it may be ‘of interest’⁹) was minimal and not at a level justifying intervention or restricting freedom of expression.

[16]  For these reasons, we do not uphold the complaint.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

15 July 2021   

 
Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Jason Collie’s original complaint to NZME – 14 December 2020

2  NZME’s decision on the complaint – 19 January 2021

3  Mr Collie’s referral to the Authority – 30 January 2021

4  NZME’s response to the referral – 17 February 2021

5  Mr Collie’s final comments – 23 February 2021

6  NZME confirming no further comments – 10 March 2021

¹ Standard 9 of the Radio Code of Broadcasting Practice
² Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 57
³ Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁵ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at [98]
⁶ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁷ Wilson and NZME Radio Ltd, Decision No. 2019-067 at [14] and see also Newstalk ZB “Mike Hosking Breakfast” <https://www.newstalkzb.co.nz>
⁸ Archie Bland “Coronavirus: Kay Burley absent from show after admitting Covid rule breach” The Guardian (online ed, 8 December 2020); Tony Winterburn “Kay Burley pulled off Sky News after admitting to flouting COVID rules” Euro Weekly News (online ed, 8 December 2020); Archie Bland “Kay Burley row could undermine Sky News, warns Adam Boulton” The Guardian (online ed, 9 December 2020); Samantha Masters “Kay Burley co-star Adam Boulton defends ‘morons’ tweet ‘It’s the credibility of Sky news’” Express (online ed, 10 December 2020)
⁹ Public interest refers to a matter of concern to, or having the potential to affect, a significant section of the New Zealand population. It is more than something that merely interests the public: Definitions, Broadcasting Standards in New Zealand Codebook, page 9